Blog Traffic

October 28, 2011

Genuine questions about retributive justice after another (efficient) LWOP plea for mass murderer

This CNN story out of Florida, headlined "Man admits murdering 4 relatives on Thanksgiving, gets life in prison," reports on another notable mass murderer coping a plea to avoid a death sentence. As I prepare to hit the road again and head off line, I am hopeful this post might prompt some extended engagement from fans of retributive justice about whether they would call this case an example of justice or injustice. First, the basics:

A Florida man pleaded guilty Thursday to murdering four relatives on Thanksgiving Day in 2009, avoiding a possible death sentence after reaching a plea deal with prosecutors. After hearing from relatives of the victims, Palm Beach County Circuit Judge Joseph Marx sentenced Paul Merhige to seven life terms. As part of the agreement, the defendant agreed to waive any rights of appeal.

"You'll never see the light of day," Marx told the 37-year-old Merhige on Thursday, in front of a packed West Palm Beach courtroom....

Merhige was arrested in January 2010 at a Florida Keys motel after an "America's Most Wanted" viewer recognized him.... Merhige was then charged with four counts of premeditated murder and three counts attempted first-degree murder in the Thanksgiving night shooting deaths of his twin sisters, a 6-year-old cousin and a 79-year-old aunt at a family home in Jupiter, Florida.

One of the victims -- Lisa Knight, 33, who was one of Merhige's sisters -- was pregnant. Her husband, Patrick, was one of two other family members who survived after being wounded in the shooting rampage, authorities said. Family members suggested in interviewers that Merhige "had ongoing resentment" for some of his relatives, Jupiter Police spokeswoman Sally Collins-Ortiz said shortly after the shootings.

Patrick Knight, who was shot in the stomach, was among the family members who told the judge Thursday that he approved the plea deal. He explained that he wanted to "pick up the pieces" and did not want to endure "20 years" of appeals. But Jim Sitton, whose 6-year-old daughter, Makayla, was among those gunned down, objected to the agreement as he wanted Merhige to go on trial and potentially face the death penalty....

The start of Merhige's trial had been set for January. His public defenders had filed court documents expressing their intent to defend him using an insanity defense. After Thursday's court proceeding, State Attorney Michael McAuliffe released a statement in which he said that -- "after careful evaluation and consideration" -- he decided to accept Merhige's plea, having determined it is "an appropriate resolution to the case."

Noting the disparate opinions among the victims' family members and about the death penalty generally, McAuliffe said he felt it sufficient that Merhige "will have no hope of having favorable rulings by a court" and "will have no ability to affect ... the lives of those he harmed. I believe that seven consecutive life sentences recognize the heinous nature of the crimes and adequately punish the defendant," he said.

I am interested in retributivist perspectives on this case in part because I think fans of utilitarian theory could and should be pleased or at least content with how this tragic case has been resolved. Due to this plea deal saving great time/energy and the imposition of an LWOP sentence, it is not hard for a committed utilitarian to believe and assert that adequate crime control benefits have been achieved here at limited costs. (Of course, strong utilitarian believers in DP deterrence may be troubled a death sentence was not sought, but the lurking insanity issue should prompt a thoughtful utilitarian to acknowledge that an LWOP sentence was a likely actual or functional final outcome of this case even if death had been vigorously pursued.)

But I have no sense at all about how those committed to retributivist perspectives on punishment would now assess this case. I assume some (many?) retributivists who agree with Kant that justice demands execution of all murderers may be troubled that Merhige will not be killed by the state. And yet, I assume that even hard-core Kantians make some exception for truly insane killers, through it is unclear whether Merhige was truly insane when he committed his murders.

Meanwhile, I know that there are some (many?) other retributivists who think nobody ever deserves a death sentence no matter how horrific the crime. Are these retributivists happy abut the outcome here, or are they instead deeply troubled that Merhige pleaded guilty based on the threat of an (unjust) death sentence?

And, for all retributivists, how much should the fact that Merhige killed so many people factor in to the justice analysis? How about the fact that the victims were Merhige's relatives (i.e., does that make him more or less blameworthy)? And where and how in the retributive justice analysis does the different sentiments of the surviving victims factor in?

As my post title is meant to make clear, my questions here are all very genuine because it is cases like this one that for me raise the most questions about how retributive justice should be assessed in real hard cases involving mass murderers with some arguments in mitigation. I can readily understand how fans of utilitarian theory unpack and assess this kind of hard case (and other kinds of hard cases), but I am truly eager to hear comments from fans of retributivist theory about how unpack and assess this kind of hard case (and other kinds of hard cases).

"Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing"

The title of this post is the title of this interesting new paper on SSRN by Barbara Creel discussing a small, but very interesting, part of the federal sentencing world. Here is the abstract:

This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.

Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.

A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.

It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.

UK debate over new sentencing structures continuing

All persons interesting in structured sentencing laws ought to be keeping an eye on the interesting debates taking place in the UK now over a new set of proposed mandatory sentencing rules. Here are links to two pieces from papers across the pond, both with telling headlined, that provide some of the details:

"Madoff says he is happier in prison than free"

The title of this post is the headline of this news report discussing a recent interview of Bernie Madoff from prison. Here is how the piece starts:

Financial swindler Bernard Madoff said that he is happier in prison than he was on the outside because he no longer lives in fear of being arrested and knows he will die in prison, TV journalist Barbara Walters said on Thursday.

Walters, who spent two hours at the prison with Madoff two weeks ago, also told ABC's "Good Morning America" program that Madoff said that while he had contemplated suicide during his early days behind bars, he lacked the courage and never thinks about killing himself now.

Madoff is serving a 150-year prison term for bilking investors out of billions of dollars in a decades-long Ponzi scheme that is considered the biggest financial fraud in U.S. history.

October 27, 2011

Sentencing road-warrior...

is what I am calling myself as I travel to three distinct locales to participate in four distinct sentencing events over the next 55 hours. I fear blogging will be very light during this time, though I am hoping to have a little down time to report on any major sentencing news before the weekend.

The title of this post, which is the headline of this report from Gawker drawn from a local news report, describes the notable recent offense and sentencing of a Massachusetts sex offender. Befitting the amusing crime, here is the amusing Gawker account:

How many times have you come across a life-sized standee in a movie theater lobby or department store, and not thought to yourself, "If only our ass-backwards society didn't disapprove of inter-dimensional dating, this cardboard cutout of Nikita and I could probably be pretty happy together." Well, Charlie J. Price of Pittsfield, Ma., doesn't abide by musty precepts like "social mores" or "not licking cardboard ladies in public."

On Saturday evening, an intoxicated Price waltzed into a Rite Aid and locked eyes with the sunglass-display model of his dreams. According to a Pittsfield Police report, he then "grabbed hold of the sunglass display, hugged it tightly and then began to lick and kiss the face of the female party on the display." This went on for about a minute, police said, and ended with the two star-crossed, partially laminated lovers rolling around on the floor, blissfully unaware of the terrified customers inching away around them.

Price, whose lack of self-control and inhibition has gotten him into serious trouble before (he's a Level 3 sex offender, which apparently is very sex-offendery), was detained by police and soon found himself in front of a judge. He was fined $200.

Though I am certain it is not PC to make light of a drunk sex offender behaving badly at the local drug store, I promise not to be offended if commentors have some light-hearted reaction to this story.

As set forth via this local news report (and this related video), which is headlined "Robert: death penalty is the only way to ensure I don't kill again," a murderer's own testimony offered in a death penalty proceeding in South Dakota sounds almost like a law professor's hypothetical because it presents, in my view, perhaps the toughest set of facts for anyone categorically opposed to the death penalty. Here are the details:

After hearing the emotional testimony from the family of Officer Ronald Johnson on Wednesday morning Eric Robert took his turn at the stand. Robert testified to the court that he is most deserving of a death sentence. "I deserve to die, Mrs. Johnson said it best I'm a coward, I killed her husband with a pipe from behind." Said Robert.

Robert's words were clear and direct as he testified to the court that he knew exactly what he was doing the day he killed Officer Ronald Johnson [while attempted to escape from prison]. On April 12th it was a war to me, it was the staff's duty to ensure I stayed in prison for the rest of my life and it was my duty to defeat them."

Robert also hinted that this anger and hatred is something that will never leave him telling the judge, "If you were to sentence me to life I think you'll read in the future that I've killed again and that's on you."

Robert showed no emotion throughout his testimony and says the death penalty is the only way to ensure he doesn't kill another human being. He was even so bold as to threaten the judge himself. "Brad Zell if you stood between me and the door to freedom I would kill you, if I sat in your chair I would execute me... Do the right thing." Said Robert.

Robert has wanted death all along but that sentence has not been given. Judge Zell informed Robert that the court does not make it's decision based on passion or a wish. "It (the court) must take all the evidence, weigh it and make a determination in this case whether death or life is appropriate." Said Judge Zell.

Eric Robert told the court he chose against a jury trial because he did not want 12 everyday people carrying the weight of this responsibility of life or death. That decision is now left up to Judge Zell who will announce his decision sometime in the coming days.

I have long thought that murders of officers by inmates already serving life terms while trying to escape present the most compelling of all cases for the death penalty, in part because merely imposing another life sentence functionally means the inmate will suffer no additional punishment for the murder and in part because the inmate would then also have no reason not to again try to escape and kill in the process (unless we are prepared to allow prison officials to torture the inmate instead of executing him). In this case, not only has the defendant killed as part of an escape attempt, he is stating directly that he will do so again if he is not sentenced to death.

October 26, 2011

Another notable review of "The Collapse of American Criminal Justice"

In this post a few days ago, I blogged about former SCOTUS Justice John Paul Stevens' review the final book written Professor Bill Stuntz, titled "The Collapse of American Criminal Justice." I am pleased now to link to another review by another notable former jurist, Paul Cassell, this one appearing in the Wall Street Journal. This review carries the headlined "Crimes, Courts And Cures: Why the justice system does a bad job of separating defendants who deserve punishment from those who don't." The whole review is a must-read, and these final insights close the piece:

"The Collapse of American Criminal Justice" concludes that our system suffers "from the rule of too much law and the wrong kind of politics." Mr. Stuntz recommends a host of reforms, including decentralization that would encourage local control responsive to local crime. He also argues for expanding city police forces — because the increased police presence would discourage the commission of crimes.

But he seems to back away from his argument that excessive proceduralism is part of the problem. While critiquing decisions such as Mapp and Miranda, Mr. Stuntz never urges that they be overturned or restructured, even though such changes could lead to the decentralized decision-making that he supports. Instead, he singles out for overruling Supreme Court precedents limiting equal-protection argument by defendants. He targets United States v. Armstrong, for example, which barred drug dealers from arguing that prosecutors must be racially discriminating when statistics indicate disparities in charges being brought. But overturning the law would lead to precisely the kind of procedural litigation that Mr. Stuntz deplores.

Nonetheless, the overarching themes of "The Collapse of American Criminal Justice" deserve wide discussion, and the book as a whole can be rightly seen as the capstone to a distinguished legal career. Americans may debate whether our criminal-justice system has truly collapsed, but few would argue that it can't be improved.

Corrupt lobbyist gets prison term 20 months instead of the 20 years first sought by feds

As detailed in this AP report, a "former lobbyist who was a rising star under Jack Abramoff's tutelage was sentenced Wednesday to nearly two years in prison for giving public officials meals and event tickets." Here are the particulars, which suggest some measure of sentencing equity prevailed in this case:

Kevin Ring argued up until his emotional sentencing hearing that he was operating in a corrupt Washington environment controlled by people with money and that he did not break the law. "I found a ridiculous system full of gray areas and I manipulated it," a sobbing Ring told the judge in asking her not to lock him up. It was the first time he spoke about the charges in court after three years of prosecution, including two trials in which he decided not to testify.

U.S. District Ellen Segal Huvelle said Ring's conduct was not nearly as egregious as ringleader Abramoff or some of the others involved in a scandal that resulted in stricter lobbying rules in Washington. But the judge gave Ring a sentence of 20 months, one of the stiffest terms among the 21 defendants in the investigation. Most others involved cooperated with prosecutors and got plea deals that avoided prison.

Huvelle said she had to order prison "to respect the jury's verdict and promote respect for the law." Ring has 14 days to appeal, and the judge said he could remain free pending the outcome.

Ring, a 41-year-old father of two from Kensington, Md., was convicted after two trials of five felony counts including conspiracy, payment of a gratuity and honest services wire fraud. The first jury couldn't agree on his guilt so he had a second trial that led to his conviction in November 2010.

Prosecutor Nathaniel Edmonds asked the judge for four years imprisonment, saying a sentence without jail would invite future offenders. He said Ring's showering of gifts on public officials "is not business as usual in Washington — that is a crime."

The Justice Department initially suggested a 17-year to 22-year sentencing guidelines range for Ring. Huvelle rejected that and suggested it appeared to justify Ring's suggestion that he was being retaliated against for exercising his constitutional right to trial.

Ring claimed in a letter to the judge that prosecutors charged him in a 10-count indictment after he refused to accuse his former boss, ex-Rep. John Doolittle, R-Calif., of being corrupted by his gifts. "Saying these things would have been a flat-out lie," Ring said.

Prosecutors deny he was pressured to lie and say he was offered a plea deal to admit his guilt without being required to testify against Doolittle or anyone else. "Unfortunately for Ring, 12 jurors decided beyond a reasonable doubt that Ring did have the intent to corrupt public officials, including Congressman Doolittle," the prosecutors wrote....

Huvelle said she did not consider Ring's conduct as nearly bad as that of Abramoff and his business partner, Michael Scanlon, who bilked their American Indian tribal clients out of $20 million in fees, or former Rep. Bob Ney, who accepted golf and gambling trips, tickets to sporting events, free meals and campaign donations.

She also noted that unlike those three, Ring did not benefit financially from his crimes but instead helped enrich his clients. She noted that the case has left Ring in financial ruin with more than $2 million in legal fees and that he went from making $600,000 at the height of his lobbying career in 2003 to now making $5,000 a month working for two nonprofits.

But Abramoff, Scanlon and Ney all reached plea agreements with prosecutors that helped cut their sentences while Ring fought at trial. His sentence ranks with theirs — Abramoff got 48 months, Ney 30 months and Scanlon also was sentenced to 20 months.

"State budget cuts clog criminal justice system"

Prosecutors are forced to ignore misdemeanor violations to pursue more serious crimes. Judges are delaying trials to cope with layoffs and strained staffing levels. And in some cases, those charged with violent crimes, even murder, are set free because caseloads are too heavy to ensure they receive a speedy trial.

Deep budget cuts to courts, public defenders, district attorney's and attorney general offices are testing the criminal justice system across the country. In the most extreme cases, public defenders are questioning whether their clients are getting a fair shake.

Exact figures on the extent of the cuts are hard to come by, but an American Bar Association report in August found that most states cut court funding 10 percent to 15 percent within the past three years. At least 26 states delayed filling open judgeships, while courts in 14 states were forced to lay off staff, said the report.

The National District Attorneys Association estimates that hundreds of millions of dollars in criminal justice funding and scores of positions have been cut amid the economic downturn, hampering the ability of authorities to investigate and prosecute cases.

"It's extremely frustrating. Frankly, the people that do these jobs have a lot of passion. They don't do these jobs for the money. They are in America's courtrooms every day to protect victims and do justice," said Scott Burns of the National District Attorneys Association. "And they're rewarded with terminations, furloughs and cuts in pay."

The ripple effects have spread far beyond criminal cases to even the most mundane court tasks, such as traffic violations and child custody petitions. The wait to process an uncontested divorce in San Francisco, for example, is expected to double to six months as the system struggles to absorb state budget cuts that have led to layoffs of 40 percent of the court's work force and the closing of 25 of 63 courtrooms.

Are opponents principally responsible for making the death penalty "increasingly expensive and less effective"?

The question in the title of this post is prompted by this new op-ed in the Los Angeles Times authored by two former DOJ lawyers, David B. Rivkin Jr. and Andrew Grossman. The commentary is headlined "The death penalty: valid yet targeted; No serious constitutional argument can be made against the death penalty. The endless campaigns to ban it cost taxpayers millions to defend." Here are excerpts:

The Constitution does not empower the Supreme Court to proscribe capital punishment or to regulate it out of existence, and those who ignore that point have made it increasingly expensive and less effective.

Every legal argument against the death penalty begins with the 8th or 5th Amendment. The 8th bars "cruel and unusual punishments," and the 5th guarantees "due process of law" before a person can be "deprived of life, liberty or property." But there is no serious constitutional argument against the death penalty. The 5th Amendment itself recognizes the existence of "capital" crimes, and executions were common before and after the Constitution's framing. No framer ever suggested that the Constitution divested states of this part of their historical punishment power, nor has there been a constitutional amendment that does so.

Matters not addressed by the Constitution are left to the democratic process and, in the main, to the states. As in Europe and Canada, a solid majority of American citizens supports the death penalty, believing it to serve both as a deterrent and an appropriate societal response to particularly heinous crimes. Unlike in Europe and Canada, however, U.S. courts and political leaders have not overridden public opinion to end the practice.

But they have tried. At the tail end of the criminal rights revolution of the 1960s and 1970s, the Supreme Court put a halt to all executions. While the public acquiesced or supported other innovations in criminal law, such as Miranda warnings, the death penalty moratorium was less well received. Pushed by their citizens, states passed new laws requiring juries to find specific "aggravating factors" justifying the death penalty, and in 1976, the court allowed executions to resume on that basis.

Those laws were early additions to the elaborate legal superstructure that has been erected around capital punishment. Since then, the courts have gradually "discovered" additional capital-punishment-related constitutional requirements. These include exhaustive prescriptions for trials involving capital cases, performance standards for defense attorneys representing those facing the death penalty, and limits on who may face execution — not rapists, not minors, not those with low IQs. Every single one is now the subject of endless litigation.

The result has been to narrow the death penalty's availability while enormously extending the burden of imposing the sentence. Appeals and post-conviction reviews regularly take a decade or more and can cost millions in legal expenses. States seek the death penalty more rarely than in the past, and the number of executions is also in decline.

And that, say those pushing today to end the death penalty, actually renders it unconstitutional. Because it is so rarely carried out, they argue, its application is inevitably arbitrary and fundamentally incompatible with the requirements of due process. But it's an absurd leap of logic to say that because many of those eligible for and deserving of the death penalty aren't executed, those who are actually put to death — after all the elaborate safeguards and procedures — have been subjected to unlawful punishment or denied due process....

Unable to convince the public on the merits of abolition, death-penalty opponents have a new strategy, attacking capital punishment on fiscal grounds. That is the basis for a ballot initiative to stop executions in California that backers of a capital punishment ban hope to qualify for the November 2012 ballot. They do have half a point: Litigation has driven up the cost of executions, and delays and expense mean that states don't always seek death for the worst of the worst.

But this argument is beyond hypocritical, coming from the same groups that have thrown up every possible roadblock to timely and efficient administration of capital punishment. If these groups took their fiscal rhetoric seriously, they would do better to acknowledge the Constitution's text and history and drop their endless campaigns to litigate the death penalty out of existence, which cost taxpayers millions to defend. The public should not be denied the choice that the Constitution allows: an affordable and effective ultimate punishment.

Feds indict former Goldman Sachs director for insider trading

Rajat K. Gupta, a former Goldman Sachs director who surrendered to the Federal Bureau of Investigation on Wednesday morning, was charged with insider trading, the latest development in the government’s multiyear crackdown on illegal activity on Wall Street.

Mr. Gupta, 62, is accused of leaking corporate secrets on Goldman Sachs to the hedge fund manager Raj Rajaratnam, the Galleon Group co-founder who was sentenced to 11 years in prison this month for making tens of millions of dollars through insider trading. A federal grand jury in Manhattan charged Mr. Gupta with one count of conspiracy to commit securities fraud and five counts of securities fraud, all related to tips on Goldman Sachs in 2008.

Rajat Gupta was entrusted by some of the premier institutions of American business to sit inside their boardrooms, among their executives and directors, and receive their confidential information so that he could give advice and counsel for the benefit of their shareholders,” Preet Bharara, the United States attorney in Manhattan, said in a statement. “As alleged, he broke that trust and instead became the illegal eyes and ears in the boardroom for his friend and business associate, Raj Rajaratnam, who reaped enormous profits from Mr. Gupta’s breach of duty.”

Gary P. Naftalis, a lawyer for Mr. Gupta, said in a statement on Tuesday: “The facts demonstrate that Mr. Gupta is an innocent man and that he acted with honesty and integrity.”

Authorities have broadly pursued insider trading on Wall Street, exacting guilty pleas from a chemist at the Food and Drug Administration, among others, as recently as this month. In the past two years, authorities have charged 56 people with insider trading, including Mr. Gupta; of those, 51 have pleaded guilty or have been convicted of swapping illegal tips about company earnings and other major corporate events. While the majority of those charged have been traders and analysts on Wall Street, Mr. Gupta is the first executive to be implicated from the upper echelons of corporate America.

The charges are a stunning reversal of fortunes for Mr. Gupta. A native of India, he graduated from Harvard Business School and had a global profile as an adviser to some of the nation’s most iconic companies. He served as a director at Goldman, Procter & Gamble and the parent company of American Airlines. In addition to his professional pedigree, Mr. Gupta was a noted philanthropist, serving in coveted posts with the Bill and Melinda Gates Foundation.

It is especially fun to start speculating about how Gupta's renown defense attorney may be advising Gupta concerning his realistic sentencing exposure and potential plea options in the wake of Rajaratnam's (and other insiders') conviction and sentencing. Even if Gupta believes he is innocent and wishes to vindicate his name through a full-blown federal criminal trial — indeed, even if Gupta is truly innocent and actually has a real good chance of clearing his name through a full-blown federal criminal trial — his defense attorney is duty-bound to explain to him that his realistic sentencing exposure is surely much greater if he goes to trial and loses than if he pleads guilty.

"Record-Low 26% in U.S. Favor Handgun Ban"

The title of this post comes from the headline of this new Gallup report, which includes this explanation of the latest poll data on gun control sentiments:

A record-low 26% of Americans favor a legal ban on the possession of handguns in the United States other than by police and other authorized people. When Gallup first asked Americans this question in 1959, 60% favored banning handguns. But since 1975, the majority of Americans have opposed such a measure, with opposition around 70% in recent years.

The results are based on Gallup's annual Crime poll, conducted Oct. 6-9. This year's poll finds support for a variety of gun-control measures at historical lows, including the ban on handguns, which is Gallup's longest continuing gun-control trend.

For the first time, Gallup finds greater opposition to than support for a ban on semiautomatic guns or assault rifles, 53% to 43%. In the initial asking of this question in 1996, the numbers were nearly reversed, with 57% for and 42% against an assault rifle ban. Congress passed such a ban in 1994, but the law expired when Congress did not act to renew it in 2004. Around the time the law expired, Americans were about evenly divided in their views.

Additionally, support for the broader concept of making gun laws "more strict" is at its lowest by one percentage point (43%). Forty-four percent prefer that gun laws be kept as they are now, while 11% favor less strict laws. As recently as 2007, a majority of Americans still favored stricter laws, which had been the dominant view since Gallup first asked the question in 1990.

Americans' preference regarding gun laws is generally that the government enforce existing laws more strictly and not pass new laws (60%) rather than pass new gun laws in addition to stricter enforcement of existing laws (35%). That has been the public's view since Gallup first asked the question in 2000; the 60% this year who want stricter enforcement but no new laws is tied for the high in the trend.

All key subgroups show less support for stricter gun laws, and for a ban on handguns, than they did 20 years ago. In 1991, 68% of Americans favored stricter gun laws and 43% favored a ban on handguns. Those percentages are 43% and 26%, respectively, today.

Relatively few key subgroups favor stricter gun-control laws today, whereas in 1991, all did. Since then, Democrats' views have shown less change, with a 10-point decline in the percentage favoring stricter laws. Republicans show a much larger decline of 35 points. In addition to Democrats, majorities of Eastern residents and those without guns in their household still favor stricter gun laws....

Americans have shifted to a more pro-gun view on gun laws, particularly in recent years, with record-low support for a ban on handguns, an assault rifle ban, and stricter gun laws in general. This is the case even as high-profile incidents of gun violence continue in the United States, such as the January shootings at a meeting for U.S. Rep. Gabrielle Giffords in Arizona.

The reasons for the shift do not appear related to reactions to the crime situation, as Gallup's Crime poll shows no major shifts in the trends in Americans' perceptions of crime, fear of crime, or reports of being victimized by crime in recent years. Nor does it appear to be tied to an increase in gun ownership, which has been around 40% since 2000, though it is a slightly higher 45% in this year's update. The 2011 updates on these trends will appear on Gallup.com in the coming days.

Perhaps the trends are a reflection of the American public's acceptance of guns. In 2008, Gallup found widespread agreement with the idea that the Second Amendment of the U.S. Constitution guarantees the right of Americans to own guns. Americans may also be moving toward more libertarian views in some areas, one example of which is greater support for legalizing marijuana use. Diminished support for gun-control laws may also be tied to the lack of major gun-control legislation efforts in Congress in recent years.

October 25, 2011

As detailed in this new AP piece, Ohio's Supreme Court has scheduled two more executions and the queue for the death chamber now extends all the way to Fall 2013. Here are the basics:

The Ohio Supreme Court has set execution dates for a man who killed a hotel clerk in northeast Ohio and a double killer whose victims included a suburban Cleveland police officer. The court’s announcement today makes it 13 executions scheduled through September 2013.

The first new date from the court, Jan. 16, 2013, is for Ronald Ray Post. He was sentenced to die for shooting the clerk at the Slumber Inn in Elyria in 1983. The second date, Sept. 25, 2013, is for Harry Mitts. He was sentenced to die for killing John Bryant and Garfield Heights Sgt. Dennis Glivar in 1994.

The Ohio Parole Board meanwhile is weighing whether to grant clemency to Reginald Brooks, scheduled to die next month for killing his three sons in 1982.

A list of all the 20 most-recent scheduled executions in Ohio is available on this webpage, which reveals that Ohio has not actually completed a scheduled execution since May 2011. This recent period with no executions is the combined result of still-pending lethal injection litigation and Governor Kasich's recent decisions to commute a few death sentences. For this reason and others, I think one would need a well-functioning crystal ball to figure out how many of the currently scheduled 13 executions will actually take place over the next two years in Ohio.

Interesting new row about mandatory sentencing terms for juves across the pond

This new piece from The Guardian reports on an interesting dispute over a new UK sentencing proposal for extending a mandatory sentencing term to certain juvenile offenders. The piece is headlined "Ken Clarke criticises mandatory sentence for teenagers carrying knives," and here is how it starts:

Ken Clarke, the justice secretary, is heading for a fresh clash with his cabinet colleague, Theresa May and Tory backbenchers after publicly criticising moves to impose mandatory prison sentences on teenagers found with a knife.

Clarke said telling a court that it must send a 13-year-old first time offender to a secure children's home would be "bit of a leap for the British justice system". He added that mandatory sentences were a "totally different system of sentencing juveniles".

The coalition cabinet has agreed that a mandatory minimum six-month prison sentence for adults caught carrying a knife should be added to the sentencing and punishment bill but May, the home secretary, has reportedly been pressing for it to be extended to under-18s as well.

Two London Conservative MPs, Nick de Bois and David Burrowes, backed by the London mayor, Boris Johnson, and 38 other Tory MPs, have been campaigning for the change, claiming that 40% of all knife crime is committed by teenagers.

Clarke told the Commons home affairs committee that this claim was untrue. He said mandatory sentences in British law were an American innovation based on the assumption that judges could not be trusted to sentence on the basis of the circumstances in each case. "We have — because of the seriousness that we attach to knife crime and we think a strong message has got to be sent to people indulging in knife crime — agreed such a mandatory sentence for adults," said Clarke.

But, he added: "This is being tabled and that is the government's proposal. The idea that mandatory sentences for certain types of offence, should be extended to young offenders, to children, to juveniles is a bit of a leap for the British judicial system."

The justice secretary made clear that the only mandatory sentence he really approved of was the life sentence for murderers. The experience of every other mandatory sentence introduced into Britain, including "three strikes and you're out" rule that remained on the statute book, was that the judges found a way round to ensure the sentence fit the circumstances of the crime.

Gearing up for "The Next Death Penalty Battleground" in California

Writing in The Huffington Post, actors and activists Alec Baldwin and Mike Farrell have this notable new commentary headlined "The Next Death Penalty Battleground." Here are a few notable excerpts:

Georgia's decision to go forward with the execution of Troy Davis in the face of an international outcry calling for time, clarity and justice has, once again, galvanized anti-death penalty consciousness here at home. What passes for fairness in parts of this country, and make no mistake, we're talking about "parts of this country," is the issue. 16 states in the U.S. have no death penalty, four of them having done away with it since 2007. Of the remaining 34, some use it so rarely their citizens forget it's actually on the books. A quick glance tells us the most active killing states comprise the "Old South," and a look at the racial makeup of death row today suggests to many that it is a relic of slavery. But a closer look tells us even more.

One of the reasons the death penalty was outlawed by the U.S. Supreme Court in 1972 was the arbitrariness of its application. Two identical crimes committed in the same state often resulted in different penalties: one death, the other life. That was supposedly fixed by the Court's Gregg decision reinstating capital punishment in 1976, which ordered "safeguards" to protect against that flaw and others. However, a recent study by the Death Penalty Information Center shows that 32% of the executions in the U.S. since 1976 came from prosecutions in only 15 counties, a number amounting to less than 1% of the total number of counties in killing states. Of those 402 executions, all but 20 (10 each in Arizona and Ohio) came from Texas, Oklahoma, Missouri and Alabama....

[O]ur sense is that the politics and culture of California make it an excellent battleground for the next death penalty fight. California has a peculiar relationship with the death penalty. On one hand, California rarely executes people -- 13 killings in 33 years, the last of which was in 2006. In that same period, three times as many death row inmates have committed suicide or died of natural causes. On the other hand, California's courts sentence people to death faster than any other state, creating the country's largest death row by far, with 715 condemned men and women. More than 20% of death row inmates in the U.S. live at San Quentin. Two years ago, Los Angeles County alone sentenced more to death than the entire state of Texas. Long seen as a "liberal" state, California's embrace of capital punishment is odd. In part, the dichotomy reflects the state's politically diverse population, which spans the ideological, ethnic, cultural, and economic spectra. With vast areas of both urban and rural populations and strong, conflicting pockets of conservative and liberal voting blocs, it is actually more a plaid than a red or blue state.

However, this very diversity is the reason California, a bellwether, can lead the way in ending state killing in the U.S. Unlike most states, California cannot end its death penalty in the legislature; it must be done at the ballot box. The voters themselves -- in all their many creeds and colors -- must make that choice. And they are ready to do so. New polls tell us that 54% of Californians prefer life without parole to death. That support is even higher among California's new majority, comprised of Latino, African American and Asian voters. Californians are becoming increasingly aware that the death penalty costs hundreds of millions of dollars more every year than life in prison without parole. And, in what is one of the most significant developments regarding this issue in decades, opposition to the death penalty is now much less a partisan issue. Today, conservatives recognize it as an inefficient government system with costs that are out of control.

Work has already begun to give California voters a chance to replace the death penalty at the polls in November 2012. The SAFE California Act will replace capital punishment with life in prison without parole, require convicted murderers to work and pay restitution to a victims' compensation fund, and direct some of the money saved to solving more rapes and murders. It will bring the sharpest decline in U.S. death sentences, the largest reduction in the national death row population, and it will make a statement by the largest number of voters that public safety will be best served by ending the death penalty.

I agree completely that the "politics and culture of California make it an excellent battleground for the next death penalty fight." I also am extremely pleased that this fight can and likely will be taking place throughout 2012 because of a DP repeal proposition on the California ballot.

Given all the economic and human costs that surrounds California's scattered efforts to administer the death penalty, as well as the fact that California has had zero executions but numerous death sentences in recent years, the 2012 election comes at an opportune time to assess the general public's affinity or disaffinity for the modern state-based death penalty. In addition, because of California's "plaid" politics and its symbolic importance nationally, I would expect an extraordinary amount of time, money and attention will be devoted to a DP-repeal campaign in California. Thus, the general public should end up relatively well informed on a high-profile single issue that, I will predict, will result in a very close final vote (and may depend a lot on turn-out).

"Five years later, Skilling's sentence is still up in the air"

I just came across this notable recent piece from the Houston Chronicle, which was authored by lawyers Jeff Ifrah and Jeffrey Hamlin, and which shares a headline with the title of this post. Here is how the piece starts:

Oct. 23, 2011, will mark the five-year anniversary of Jeffrey Skilling's sentencing and, remarkably, no one yet knows what the former Enron CEO's final sentence will be.

In May 2006, Skilling was convicted in the wake of Enron's collapse on one count of conspiracy, 12 counts of securities fraud, five counts of making false statements to auditors and one count of insider trading. Five months later, U.S. District Judge Sim Lake sentenced Skilling to 292 months — more than 24 years — in prison and assessed $45 million to be paid in restitution.

But given the vagaries of the federal sentencing system, Skilling, who is now serving time in a prison in Englewood, Colo., could end up serving that same 24 years, or significantly more time, or even significantly less time, for the crimes that he committed as leader of Enron. Skilling is currently scheduled for release on Feb. 21, 2028, when he will be 74 years old. He could, however, end up getting out of prison well before that and still in the prime of life — or he might serve what amounts to a life sentence.

Since the sentencing, Skilling's legal team has achieved some victories. In January 2009, the U.S. Court of Appeals for the 5th Circuit vacated Skilling's sentence on the grounds that the district court misapplied the federal sentencing guidelines. The next year, however, the U.S. Supreme Court held that the trial record didn't support a conviction on one of the prosecution's key theories — conspiracy to commit "honest services" wire fraud. But Skilling suffered a defeat last April, when the 5th Circuit upheld his conspiracy conviction and found this "honest services" error to be harmless.

With all that, though, Skilling still needs to be resentenced, and Judge Lake has not yet set a date for the resentencing.

Noting the costs of being tough on sex offenders in Iowa

This local article, headlined "Iowa sex offender convictions rise, pushing up costs, data show," reports data on sex offender convictions and consequences in the heartland. Here are the details:

The number of people convicted in Iowa for sex crimes has grown for each of the last five years, driving up the already growing cost to taxpayers of monitoring and imprisonment.

A draft of a new state report shows prisons are also housing sex offenders for longer periods of time and parole caseloads are growing significantly. By 2021, some 2,600 sex offenders are expected to be serving “special sentences” under a stringent state law passed in 2005, meaning they will be supervised after their prison release for 10 years or life depending on the seriousness of their crimes.

“The special sentence, particularly lifetime supervision, will increase the parole caseload by 78 percent in 10 years,” the draft report released this month by Iowa’s Division of Criminal and Juvenile Justice Planning found. The additional cost of monitoring the offenders will total at least $34.54 million during that span, according to the report.

Members of the Iowa Sex Offender Research Council will meet Wednesday at the Statehouse to discuss the new report. The council has urged state leaders to explore more effective and less expensive ways of monitoring sex offenders. “We’re trying to figure out policy-wise what makes the most sense to do now,” said Sally Kreamer, who heads the 5th Judicial District correctional services. “Caseloads are only going to get larger and larger. If we don’t figure out some strategy soon, I’ll have to come back to my board and say, ‘What is it that you don’t want us to do anymore?’ ”

The Legislature agreed last year to allow corrections officials to use risk assessments to decide which offenders should be subject to electronic monitoring after they have been released from prison. That move saved thousands of dollars without causing any increased public safety issues, Kreamer said. She said research shows Iowa has been more successful than others in monitoring those at highest risk and curbing recidivism.

Now, however, officials are running out of ideas on how to deal with the cost of housing more sex offenders in prison and monitoring hundreds more on parole throughout the state. “Were trying to brainstorm and figure out what to do,” Kreamer said. “But it’s really hard to find good ideas.”

The number of sex offenders in Iowa prisons reached 542 this year, up from 507 in 2007. Those sent back to prison for parole violations this year numbered 68, compared with four in 2007....

A 2009 investigation by The Des Moines Register found the flood of new sex offenders under supervision would cost taxpayers a minimum of $168 million over 20 years, or about $8.4 million a year. The new study tallied only the minimum monitoring that would be required under the 2005 law and excluded the probation officer salaries the Register considered....

[T]he new state report and other research nationally suggests more savings might be found by assessing and treating juvenile offenders, who make up a growing part of Iowa’s sex offender population. “There is more latitude in the juvenile area because they respond more easily to treatment,” said [State Senator Bob] Dvorsky, a member of the sex offender council. “There are ways that maybe we can work with them and get them out of the system if they are identified quickly.”

"Lockdown: Technology in America’s Most Notorious Prison"

The title of this post is the headline of this interesting new series at the technology site Gizmodo. Here is how the series is set up:

Do prison inmates surf the Internet? Do they have gadgets? Do they make gadgets? Do they make weapons? Where do they get their porn and booze?

On the outside, we enjoy lives built around the fruits of modernity. But what about prisoners? San Quentin sits on the San Francisco Bay, minutes away from the most technologically famous valley in the world, so we went to jail to find out how much of our 21st-century techno-culture has made it behind bars.

San Quentin State Prison is the stuff of legend. Hell, Johnny Cash wrote a song about it. A lot has changed since The Man in Black visited, but even more striking is what hasn't changed. Recently, Gizmodo had the rare opportunity to get inside this notorious prison. To say that it was enlightening is a serious understatement.

There are a lot of rules when you visit the slam: You can't wear blue, grey, or orange. Not a stitch: Those colors are reserved for inmates only — blue and grey for the full-time residents, and orange for guys who were still being processed and might well end up in a higher security prison. (They kept us far away from the guys in orange.) You also can't bring in a cell phone, a very coveted piece of contraband. And you most definitely cannot bring in anything that could be used as a weapon; not that they're hurting for weapons, as you'll find out tomorrow....

San Quentin houses more than 5,000 inmates, despite being built to accomodate only 3,082. Six hundred condemned men reside on San Quentin's death row — far more than Florida's or Texas'. For all that, there are only 300 officers on duty at peak shifts. We spent most of our time on North Block, which houses approximately 850 men. Around 650 of them carry a life sentence, and roughly 80-percent are there for violent crime. Prisoners are generally housed two men to a small cell that was only intended to house one. That's overcrowding for you. The men refer to their cellmates as "cellies."

For all intents and purposes, San Quentin is designed to be an island. It's very clear that inmates are not meant to be a part of the modern world of technology. They aren't allowed any internet access at all. They can have TVs, but no cable. They can make phone calls, but they absolutely cannot have cellphones. No booze, no way. Yet, despite the levies in place, technology has a way of seeping in. Cellphones can be procured though a number of illegal channels. Booze can be made right in your cell. Permitted devices can be hacked to do things they aren't supposed to do.

Essentially, where there's a will there's a way — even in prison. And these guys have nothing but time on their hands.... By and large the inmates we interviewed were affable and articulate. If you were meeting them under other circumstances, you'd probably think they were nice guys.

Except most of them were in for murder. It was hard to wrap my mind around that. The deeds didn't seem to match the men's personalities, and probably with good reason. Most of the guys we'd talked to had been in jail since the 70's. They were young men who had made big mistakes—mistakes which many would argue are unforgivable — and they were still paying for them. Many had been in prison longer than I'd been alive.

When we left that afternoon, we were acutely aware of how lucky we were to be able to do so. The battery in our car had died. So what. We weren't in jail. Small annoyances were put in their proper places. Our smartphones, which we'd gotten so jaded about, were incredible and magical again. As we ate our dinners, sipped our beers, and occasionally checked our emails that night, we talked about the things we took for granted. We had always enjoyed our freedom, but I don't know that we'd ever had a clearer picture of what life would be without it. It's the kind of thing that makes you want to make sure you are taking advantage of all life has to offer. It's the kind of thing that makes you grateful to go home.

Every day this week we'll be bringing you a new tech story from inside San Quentin, complete with photos and video. Check out today's episode: Prison Hacks.

October 24, 2011

Interesting comments from two very high-profile, white-collar offenders

I have been meaning to blog about this recent story, headlined "'Like a Mafia Don': Bernie Madoff's Boastful Letter to Angry Daughter-in-Law," which resulted from a new 20/20 interview of Madoff's daughter-in-law, Stephanie Madoff Mack." But even before I had the chance to consume that new chapter in an older high-profile white-collar story, along comes this new piece from Newsweek reporting on an exclusive interview with Raj Rajaratnam as he prepares to start his 11-year federal prison term. Because Raj's conviction and sentence is newer news, I will excerpt an interesting section from the Newsweek piece here:

“There are two types of plea bargains. One is, you cooperate with the government. You finger 10 other people. The other is a plea bargain without cooperation.” The white defendants all pleaded without cooperating; they did not wear a wire. “The South Asians all did the plea bargain with fingering,” [Rajaratnam] notes sourly. “The Americans stood their ground. Every bloody Indian cooperated — Goel, Khan, Kumar.” He puts it down to “the insecurity of being an immigrant, lawyers bullying them into that position.”

As late as two weeks before the sentencing, Rajaratnam was still being asked by the government to turn on Gupta. But he wouldn’t wear a wire, he says, so he could sleep at night. “Anil Kumar’s son worked at Galleon one su mmer. I used to vacation with Rajiv Goel’s family. Their families knew my family. You don’t think this is going to haunt these guys? They wanted me to plea-bargain. They want to get Rajat. I am not going to do what people did to me. Rajat has four daughters.”

The Rajaratnam case can be seen as a metaphor of the difference between immigrants from South Asia, who have a more elastic view of rules and a more keenly developed art of networking, and their children, the first generation, schooled to play by American rules. Preet Bharara came to the U.S. when he was an infant. Yet for all his complaints about unfairness, Rajaratnam, surprisingly, still believes in American justice. “In Sri Lanka I would have given the judge 50,000 rupees and he’d be sitting having dinner at my house. Here, I got my shot. The American justice system is by and large fair.”

Five extra years in prison for cellphone call to celebrate parole offer!?!

I just saw this remarkable story from the Los Angeles Times, which tells a parole sentencing tale so sad and ridiculous that I am not even sure Kafka could have dreamed it up. The story is headlined, "Borrowed cellphone slams prison cell shut; An inmate says used a contraband phone to tell relatives he was about to be paroled. Caught, he gets five more years in prison." Here are the details:

Dwayne Kennedy threw a man from a moving car in 1988, but that's not what's keeping him in prison today. It's not the inmate he stabbed 17 years ago either; the state parole board forgave him that.

Instead, California prison officials are keeping Kennedy locked up for an extra five years — costing taxpayers roughly $250,000 — because guards caught him with a contraband cellphone he says he borrowed to tell his family he had just been granted parole and was coming home.

It was "just stupid on my part for even using it," Kennedy told a pair of parole commissioners convened in June 2010 to decide his punishment for breaking prison rules. But "cellphones are just everywhere in prison nowadays.... It's easy to borrow one from a guy," Kennedy said....

Phones are so prevalent in California prisons that even highly scrutinized inmates can get their hands on them. Charles Manson has been caught with two. Inmates have used cellphones to run drug rings, intimidate witnesses and order violent attacks on the outside. Despite state leaders' rising anxiety over inmates obtaining phones, smuggling them into prisons wasn't against the law until this month.

Gov. Jerry Brown signed a bill on Oct. 6 making it a misdemeanor punishable by up to six months in a county jail. Brown also issued an executive order that requires prison officials to increase the number of random searches of employees and to determine how much it would cost to send them through airport-style screening on their way into work.

Under the new law, most inmates caught with phones face losing 90 days of credit earned for good behavior. In Kennedy's case, using the cellphone derailed his parole bid and effectively lengthened his prison stay by at least five years. That's because a 2008 ballot measure extended the time inmates serving life sentences must wait for a new hearing when they are denied parole or their parole offer is revoked.

When the two parole commissioners met to decide his punishment for violating the cellphone rule, Kennedy said that he had made the calls because he was "overwhelmed and just happy" that he had been granted parole. "He was so happy.... We were crying and praying," recalled his sister, Yolanda Kennedy, one of the people he called.

But months later, parole commissioners John Peck and Dennis Smith found that Kennedy's willingness to violate the prison rule proved he is an "unreasonable risk of danger to society." They revoked his parole offer and imposed the five-year wait until his next hearing.

The commissioners' decision seemed a bit severe to Debbie Mukamal, executive director of Stanford University's Criminal Justice Center, who noted that the state is under a U.S. Supreme Court order to remove tens of thousands of inmates from its overcrowded prisons. "I wonder if they're punishing [cellphone use] more severely because it's something they feel like they can't control," Mukamal said.

Heidi Rummel, a former federal prosecutor who now advocates for inmates' rights as co-director of USC Law School's Post-Conviction Justice Project, said there should be some evidence of harm before imposing such a harsh penalty. "It would seem that why he had the cellphone would be a critical factor in deciding whether it made him a danger to society," Rummel said.

The Los Angeles County Superior Court and the 2nd District Court of Appeal have rebuffed Kennedy's efforts to get the decision overturned. His attorney, Keith Wattley, has filed a petition with the state Supreme Court. "There's never been any allegation he's done anything illegal with this phone," Wattley said.

Kennedy, 44, has been in prison since 1990, serving 15 years to life for kidnapping and conspiracy to commit murder. He's now at Chuckawalla Valley State Prison in Blyth. He became eligible for parole in 1999 but a decade passed before parole commissioners found he was no longer a threat to society and recommended his release. They noted that Kennedy had stayed out of trouble for seven years and had a stable home and good job waiting for him on the outside.

The cellphone bust changed everything. "Frankly, this panel didn't buy that you were going to call your supporters to thank them," said Peck, a parole board commissioner and recently retired prison guard who presided over the June 2010 hearing. "There is no way you would put your parole date at risk to make a thank-you call."

This lengthy new piece out of Buffalo, which is headlined "William Hochul puts death penalty to frequent test: U.S. attorney uses federal charge often, unsuccessfully and at a significant cost," provides a fascinating perspective on the local operation of the federal death penalty. Here are the details:

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York. So far, none of those cases has led to an execution. But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas. In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years....

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases. "It is a colossal waste" of court time, court resources and money, said Harrington, who also opposes the death penalty on moral grounds.

According to death penalty defense lawyer Kevin M. McNally, Hochul is one of a small number of federal prosecutors who file death penalty-eligible charges in cases involving drug gang members who kill other drug gang members. He said juries are rarely willing to pronounce the death penalty in "gangster-on-gangster" cases. "I seriously doubt whether any of [the Hochul] defendants will actually face the death penalty at trial," said McNally, of Frankfort, Ky., who heads the Federal Death Penalty Resource Counsel Project.

While some defense lawyers say Hochul is overzealous and is wasting taxpayer money, Hochul, 52, defends his record. He said he is enforcing federal law and trying to protect law-abiding people in neighborhoods terrorized by gang violence. Hochul said his office does elect to file murder and racketeering charges in some gang-murder cases, and it's the murder charge in the context of racketeering that makes the cases death penalty-eligible. But ultimately -- after a review process that usually takes months -- the final decision on whether to pursue the death penalty is made by Attorney General Eric Holder in Washington. And after a death penalty case goes to trial, a jury decides whether the defendant will face execution.

"I often go out and speak to block clubs in the inner city, and people come up to me and tell me they are afraid to go out for a walk in their own neighborhood, or sit in their own backyard," Hochul said. "We will continue to bring these cases against the most violent offenders and leave the ultimate decisions to the attorney general and juries."

Statistically, gang violence in the region has decreased over the past two years, and Hochul contends that prosecutions undertaken by his office with the FBI and other agencies helped. Buffalo Police Commissioner Daniel Derenda and Niagara Falls Police Superintendent John R. Chella agree.

"I would absolutely not want to see the [federal] death penalty taken off the books," said Chella. While such cases rarely lead to executions, they often lead to guilty pleas that put violent criminals in prison for decades, sometimes life, Chella said. "[Hochul] has helped us to take some very, very dangerous people off the streets," Derenda said....

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years....

The last federal execution in America was that of Louis Jones Jr., another decorated Gulf War veteran, who kidnapped, raped and murdered a 19-year-old female soldier in Texas. He was executed in March 2003. Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals....

Hochul is filing these cases because "I believe he is an overzealous prosecutor," said Terry Granger, a Buffalo defense lawyer whose clients have included convicted murderer and gang-leader Donald "Sly" Green. "I do not see how even the staunchest supporter of the death penalty could argue that these prosecutions are an efficient use of taxpayer money," added David Kaczynzki, with New Yorkers for Alternatives to the Death Penalty.

Supporters of the death penalty say it is the kind of tough law enforcement measure that has helped deter violent crime in recent years, and they point to local, state and national crime statistics as proof. Officials said crime in the state was down 4.4 percent in the first six months of 2011, as compared with 2010. The rates of murder, rape, robbery and assault were all down.... In Buffalo, homicides were down 23 percent, shootings were down 25 percent and violent crime in general was down 18 percent in the first half of this year, Derenda said. Niagara Falls' crime rate is also down....

"We take these decisions very seriously," Hochul said. "We only file capital charges against those defendants who appear to be the worst of the worst."

Once a potential death penalty case is filed, each defendant is assigned two top defense attorneys, who are each paid $178 an hour by the federal courts. The usual rate for a court-appointed federal defense attorney is $125 an hour, and -- aside from death penalty-eligible cases -- defendants rarely get more than one.... Other support personnel for the defense attorneys are also hired, including "mitigation experts," who dig into the defendants' backgrounds seeking information that might convince the Justice Department not to pursue the death penalty. Mitigation experts get up to $100 an hour, plus travel expenses. In several local cases, mitigation experts traveled to Puerto Rico to interview friends and families of defendants....

"The federal system is good in that it usually guarantees that each defendant will get highly qualified representation," said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. "But it adds a whole new layer of costs that taxpayers have to pay."

How expensive can a single federal death penalty case become? According to the Death Penalty Information Center, the Justice Department's recent unsuccessful effort to execute New York City mobster and killer Vincent "Vinnie Gorgeous" Basciano cost taxpayers between $4 million and $10 million....

[A]ccording to District Court Clerk Michael J. Roemer, death penalty cases were by far the most costly in the region last year. Over the past year, more than $661,000 was spent by the court system on defense-related expenses for 24 death penalty-eligible defendants in the district, said Lisa G. Ball, chief financial officer for the district.

On average, that's more than $25,800 per case, and half of those cases are still pending. During the same time period, about $2.47 million was spent defending at least 230 other defendants who received legal aid. That's about $10,700 per case, and many of those cases have been completed....

The last time the Justice Department approved a local death penalty case for trial was the 1993 case of Darryl "Reese" Johnson, an enforcer for the LA Boys gang. Johnson was accused of multiple killings, assaults and kidnappings. Hochul handled the case as an assistant U.S. attorney. Rather than face such a trial, Johnson decided to plead guilty to murder and racketeering. He was sentenced to eight terms of life imprisonment -- believed to be the longest sentence ever handed down in a Buffalo courtroom -- in 1995. Hochul said that case took one of most violent criminals in Buffalo's history off the streets forever.

With all due respect to David Kaczynzki, I think the federal capital prosecution of Darryl "Reese" Johnson shows why even an agnostic supporter of the death penalty (like me) can claim that these new federal capital prosecutions are an efficient use of taxpayer money. If and whenever a capital prosecution prompts a murderer to plead guilty, the cost savings from avoiding a full-blown federal trial and appeals are significant and save many times more than gets spent at the outset of a federal capital prosecution. (Though federal capital trials surely cost millions more than non-capital trials, a full-blown non-capital trial in just one big federal criminal case is likely to cost much more than the $661,000 figure being stressed here.)

In addition, it is important to keep in mind that USA William Hochul's decision to seek a federal capital prosecution in these 24 cases results in the defendants receiving a "Cadillac" defense which should help ensure (1) there is no wrongful prosecution/conviction of an innocent defendant, (2) that prosecutors do not engage in any misconduct, and (3) that all relevant mitigating evidence is discovered as early as possible. In other words, the extra money being spent on defense costs because of USA Hochul's capital charging decisions likely benefit not only defendants, but also the entire federal criminal justice system, in lots of ways. Defendants receiving a great defense from the very outset of their prosecution are far less likely to be wrongfully convicted or over-punished, which can and should save significant federal resources in the long-run.

Further, and not to be overlooked here, there are likely great savings to New York taxpayers from having major murders handled in a major way in the federal system. Beyond the fact that New York no longer has a death penalty — and thus has no ready means for state prosecutors to induce multiple murderers to take a LWOP plea — most major prosecutions at the state level have additional layers of costs because defendants get two post-conviction bites at the apple through state and federal habeas review. In contrast, a federal defendant only get one bite via federal 2255 review.

I could go on and on explaining what seems sound, not wasteful, about how federal justice is being administered in Buffalo — largely because I have long thought that an exclusively federal death penalty system (which they now have in NY) would be the most just and most efficient way for this country to administer capital punishment. I understand fully why staunch death penalty abolitionists view these federal capital prosecutions to be unjust and unjustified. But I hope others might understand fully why anyone who is not a staunch death penalty abolitionists could find virtue and economic justifications in how USA William Hochul is doing his job up in Buffalo.

Is taking money less harmful to victims than a "punch in the face" or selling crack?

The question in the title of this post is prompted by a sentencing argument being made in a notable white-collar case from California. The back story appears in this interesting article, headlined "Former MoFo Partner Pleads Guilty to Bilking Insurers, San Francisco Schools," which first caught my eye because I happened to be law school classmates with one of the defendants. But the passages in the penultimate paragraph below generated today's sentencing question:

Jonathan Dickstein, a former Morrison & Foerster partner in San Francisco, could wind up in prison after pleading guilty Tuesday to 31 felony counts stemming from a $400,000 scam he and his wife concocted based on their autistic son's education and medical treatment.

Dickstein is scheduled to be sentenced November 15 following his conviction on charges including grand theft, forgery, insurance fraud, and conspiracy, a spokesman for the San Francisco District Attorney's office confirmed Friday.

Dickstein and his wife, Barclay Lynn, were arrested in August 2010 and charged with creating a fictitious in-home care and education provider for their autistic son. The couple used the fake company, Puzzle Pieces, to double bill their medical insurance providers, Anthem Blue Cross and MoFo's own self-insurance arm, and the San Francisco Unified School District. School district lawyers alerted authorities to the scam.

Dickstein — a Stanford University and Harvard Law School graduate and former cochair of MoFo's life sciences practice — resigned from the firm to launch a solo practice five months before he and his wife were arrested....

Lynn, who also pleaded guilty to 31 counts, was sentenced last month to one day in jail and received credit for time served, her lawyer, Douglas Rappaport, said Friday. She was also sentenced to five years probation, and, along with Dickstein, must repay the stolen money, Rappaport said.

Dickstein and Lynn pleaded "open to the court," according to a district attorney's office spokesman, meaning they rejected a plea bargain offer — which the spokesman would only say included prison time — and left sentencing to the judge's discretion....

San Francisco Unified School District general counsel Maribel Medina said Friday that Dickstein and Lynn have so far repaid $110,000 of the roughly $238,000 stolen from the schools. Medina said she hopes the couple's punishment doesn't end with restitution and that Dickstein winds up incarcerated. A harsher sentence, Medina says, would help deter other potential scam artists. "If you're thinking of stealing from the children of SFUSD, you better think twice," she says. "We're going to catch you and work hard to prosecute you."

Rappaport argues that jail time would be too harsh a sentence. "Even though, currently, we all love to punish white-collar criminals — it's the same reason why people are occupying Wall Street... the fact is, Jonathan has hurt nobody physically," Rappaport says. "When you take money from people, you hurt them indirectly. It's different if you punch somebody in the face and it's different if you sell crack."

Rappaport says the public shaming the couple has been forced to undergo and the damage that Dickstein has suffered to his career is punishment enough. Rappaport argues that, in a way, the school district reaped a windfall because under normal circumstances it would have had to cover at least part of the cost of educating Dickstein and Lynn's son, but instead have received full reimbursement.

October 23, 2011

"When life is too long: Debate over older prisoners"

The title of this post is the headline of this notable new AP article, which includes data and discussion on very lengthy prison terms. Here are excerpts:

Nationally, nearly 10 percent of more than 2.3 million inmates were serving life sentences in 2008, including 41,095 people doing life without parole, up 22 percent in five years, according to The Sentencing Project, which advocates alternatives to prison. The increase resulted from lawmakers "dramatically" expanding the types and repeat offenses that carry potential life terms, research analyst Ashley Nellis said.

"The theme is we're protecting society, then the question is: From what?" said Soffiyah Elijah, executive director of the Correctional Association of New York, a watchdog group. She said with the cost of keeping a state inmate $55,000 a year — a cost that grows as they age and their medical needs increase — a financial analysis shows that parole and probation are far cheaper punishments that can also satisfy the public need for retribution.

Meanwhile, data show new crimes by convicted felons steadily declining from their teens through their dotage. "Most criminal behavior is tied with impulse control. The section of the brain that controls impulse control is the last section of the brain that becomes fully developed," Elijah said. There's a large drop-off in criminal behavior and recidivism after 40 or 45, she said, a point seldom made in public discussion "because it's not convenient. It doesn't dovetail with the kind of tough-on-crime mentality that results in votes."

Patricia Gioia, whose daughter was murdered 26 years ago in California and who runs the Albany chapter of Parents of Murdered Children, said killers should spend their lives locked up, contemplating what they did, the person whose life they took and the lifelong suffering of families and friends. "They should in effect be punished for this and should not enjoy the freedom that other people have to wander the world," she said....

A Stanford University study in September showed the recidivism rate was less than 1 percent among 860 murderers paroled in California since 1995. Five returned to prison for new felonies, none for similar life-term crimes. By contrast, nearly 49 percent of all released California inmates were recommitted for new crimes.

"Not only are most violent crimes committed by people under 30, but even the criminality that continues after that declines drastically after age 40 and even more so after age 50," the study found. In New York, the number of lifers with few prospects for release has grown in the past decade, tracking a national trend and raising a new set of criminal justice policy questions.

"What kind of treatment programs should we be considering for the offenders who have a sentence of life without parole, or enter the system with sentences of 50 years to life?" Commissioner Brian Fischer asked recently on the 40th anniversary of the deadly riots at Attica, another maximum-security prison in New York. Since the state's 1996 sentencing amendments for capital crimes, establishing life without parole for first-degree murder, inmates with that sentence rose from four to 223, with 15 more expected each year, he said.

New York now has more than 800 prisoners who are 65 or older, double the total a decade ago. It has no death penalty, though 34 states and the federal government do. Federal prisons held 3,254 inmates age 66 or older in August, up from 1,326 in 2000. From 1985 to 2006 in New York, 72 prisoners released when they were over 65 were returned for new crimes, less than 5 percent.

Effective review of capital law ineffectiveness in Pennsylvania

Today's Philadelphia Inquirer has this very lengthy review of the copious errors by capital defense attorneys in Pennsylvania. Here is how the piece, which is headlined "In life and death cases, costly mistakes," gets started:

Willie Cooper, convicted of strangling his brother's girlfriend to death in a Germantown apartment, was awaiting a jury's decision on whether he should be sentenced to death, when his lawyer rose to speak on his behalf.

Citing the biblical passage "an eye for an eye," the lawyer told jurors that the ancient edict called for the death penalty only in the killing of a pregnant woman. Cooper had killed a pregnant woman. Inexplicably, his lawyer had forgotten that. The jury voted to impose the death penalty.

Cooper's case is among more than 125 capital murder trials in Pennsylvania --- 69 in Philadelphia alone -- that state and federal appeals courts have reversed or sent back for new hearings because mistakes by defense lawyers deprived the accused of a fair trial. That amounts to nearly one-third of the 391 capital convictions in Pennsylvania since the modern death penalty took effect in 1978.

An Inquirer review of death-penalty appeals spanning three decades found that defense lawyers in these high-stakes cases failed their clients in ways large and small. Lawyers fighting for defendants' very lives often spend little time preparing their cases and put on only the barest defense. They neglect basic steps, such as interviewing defendants, seeking out witnesses, and investigating a defendant's background.

The problem is particularly acute in Philadelphia, where legal experts say the lawyers who handle such cases -- typically at taxpayers' expense because defendants are indigent -- are often overworked and underpaid. Court-appointed lawyers get $2,000 for trial preparation and $400 a day in court to handle cases that a veteran defense attorney said required a minimum outlay of $35,000 to $40,000.

"The number of reversals on these cases is staggering," said Ronald L. Greenblatt, chairman of the Philadelphia chapter of the Pennsylvania Association of Criminal Defense Lawyers. "The attorneys who are doing this work, because of the low pay, are not doing it the right way. We really need it to stop."

The price of replaying such proceedings is costly. Death-penalty appeals consume hundreds of hours of work by dozens of lawyers, judges, police officers, and witnesses, and, even by modest estimates, cost taxpayers hundreds of thousands of dollars.

They take a toll on victims' families, who must revisit painful memories at multiple court hearings and often wait years for justice. And in rare instances, they force defendants to languish on death row, only to later be acquitted.

Former Justice Stevens reviews late Professor Stuntz's "The Collapse of American Criminal Justice"

In the new issue of the The New York Review of Books, Former SCOTUS Justice John Paul Stevens reviews the final book written Professor Bill Stuntz, which is titled "The Collapse of American Criminal Justice." This terrific and lengthy review is headlined "Our ‘Broken System’ of Criminal Justice," and here is how it starts and finishes:

William Stuntz was the popular and well-respected Henry J. Friendly Professor of Law at Harvard University. He finished his manuscript of The Collapse of American Criminal Justice shortly before his untimely death earlier this year. The book is eminently readable and merits careful attention because it accurately describes the twin problems that pervade American criminal justice today — its overall severity and its disparate treatment of African-Americans.

The book contains a wealth of overlooked or forgotten historical data, perceptive commentary on the changes in our administration of criminal justice over the years, and suggestions for improvement. While virtually everything that Professor Stuntz has written is thought-provoking and constructive, I would not characterize the defects in American criminal justice that he describes as a “collapse,” and I found his chapter about “Earl Warren’s Errors” surprisingly unpersuasive.

Rather than focus on particular criminal laws, the book emphasizes the importance of the parts that different decision-makers play in the administration of criminal justice. Stuntz laments the fact that criminal statutes have limited the discretionary power of judges and juries to reach just decisions in individual cases, while the proliferation and breadth of criminal statutes have given prosecutors and the police so much enforcement discretion that they effectively define the law on the street....

Professor Stuntz’s account of the “collapse” of an overgrown system of criminal law enforcement is well worth reading. It is full of interesting historical discussion. It accurately describes the magnitude of the twin injustices in the administration of our criminal law. It should motivate voters and legislators to take action to minimize those injustices.

The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems — and for their solutions.

The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime — bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court’s emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective.

What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.